clear and present danger test | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction / Criminal Law

The Clear and Present Danger Test is a test developed by the SCOTUS to determine if a First Amendment right can constitutionally be curtailed.

The Clear and Present Danger Test is a legal standard that the Supreme Court of the United States developed in the early 20th century to determine if a First Amendment right can constitutionally be limited or prohibited. It is one of several tests that the Supreme Court has developed over time to evaluate whether a law violates the First Amendment’s protection of free speech.

The test was first articulated in the 1919 case of Schenck v. United States. In that case, the Supreme Court upheld the conviction of a man who had distributed leaflets urging men to resist the draft during World War I. The Court held that the government could restrict speech that posed a “clear and present danger” to the country’s safety or security. The Court stated that “the character of every act depends upon the circumstances in which it is done” and that speech that is harmless in one context may be dangerous in another.

The Clear and Present Danger Test requires that the government prove that the speech in question presents a clear and present danger to a significant government interest. In other words, the speech must be such that it would create an immediate danger that the government has a right to prevent. The government must show that the danger is not just theoretical but real and imminent.

The test has been used to evaluate a wide range of laws restricting speech, including laws prohibiting advocacy of illegal activity, laws banning hate speech, and laws regulating campaign finance. In general, the test has been applied most strictly in cases involving political speech, where the Court has been particularly protective of the right to free expression.

The Clear and Present Danger Test is not without its critics. Some legal scholars argue that it is too vague and subjective and that it gives the government too much discretion to restrict speech. Others argue that it is too permissive and that it allows the government to restrict speech too easily. Some critics have also argued that the test is too focused on the content of speech and that it does not adequately consider other factors that may be relevant, such as the speaker’s intent or the audience’s reaction.

Despite these criticisms, the Clear and Present Danger Test remains an important tool for evaluating the constitutionality of laws restricting speech. The test has been refined and modified over the years, and it continues to play a central role in First Amendment jurisprudence. As with any legal test, however, it is subject to interpretation and application, and its meaning and scope may continue to evolve as new cases come before the courts.

The test was further refined in subsequent cases, including Whitney v. California (1927), in which the Court held that speech could be restricted if it posed a “clear and present danger” to society. In Brandenburg v. Ohio (1969), the Court established a higher standard, ruling that speech could only be prohibited if it is “directed to inciting or producing imminent lawless action” and is likely to do so.

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Last Modified: 04/08/2023

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